| Santillo v Thompson |
| 2010 NY Slip Op 02627 [71 AD3d 1587] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| Rose Santillo, Appellant, v Michael A. Thompson,Respondent. |
—[*1] Hagelin Kent LLC, Buffalo (Lauren Yannuzzi of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), enteredJune 10, 2009 in a personal injury action. The order denied the motion of plaintiff to set aside theverdict.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen the vehicle she was driving collided with a vehicle driven by defendant as he exited a gasstation. Following a bifurcated trial on liability, the jury found that defendant was negligent butthat his negligence was not a substantial factor in causing the accident. Plaintiff thereafter movedto set aside the verdict on the grounds that the verdict was inconsistent and against the weight ofthe evidence. We conclude that Supreme Court properly denied the motion.
At the outset, defendant contends that we are precluded from reviewing the merits of themotion because petitioner waived her right to make such a motion by failing to do so in a timelymanner. We reject that contention. The court exercised its discretion in determining the motionon the merits (see generally Ehrman v Ehrman, 67 AD3d 955, 956 [2009]), and there isno indication in the record that the return date of the motion was adversely affected. We agreewith defendant, however, that by failing to object to the alleged inconsistency of the verdictbefore the jury was discharged, plaintiff failed to preserve for our review her contention that thecourt erred in denying her motion on that ground (see Haller v Gacioch, 68 AD3d 1759[2009]; Bleiberg v City of New York, 43 AD3d 969, 971 [2007]; Skowronski vMordino, 4 AD3d 782 [2004]).
We reject the further contention of plaintiff that the court erred in denying her motion to setaside the verdict as against the weight of the evidence. A verdict is not against the weight of theevidence merely because the jury finds a defendant negligent but determines that his or hernegligence is not a proximate cause of the accident. "The issue of whether a defendant'snegligence was a proximate cause of an accident is separate and distinct from the negligencedetermination" (Ohdan v City of New York, 268 AD2d 86, 89 [2000], appealdismissed 95 NY2d 885 [2000], lv denied 95 NY2d 769 [2000]; see Giraldo vRossberg, 297 AD2d 534 [2002]). A verdict finding that a [*2]defendant was negligent but that such negligence was not aproximate cause of the accident is " 'against the weight of the evidence only when [those] issuesare so inextricably interwoven as to make it logically impossible to find negligence without alsofinding proximate cause' " (Jones v Radeker, 32 AD3d 494, 495 [2006]; seeSzymanski v Holenstein, 15 AD3d 941 [2005]; Skowronski, 4 AD3d 782 [2004]),and that is not the case here. We conclude that the jury could reasonably find that defendant wasnegligent based on his failure to observe plaintiff behind another vehicle when he exited the gasstation but that his negligence was not the proximate cause of the accident because plaintiff wasoperating her vehicle in the median of the roadway in violation of Vehicle and Traffic Law§ 1126 (a) and § 1128 (d). Thus, "the evidence [did not] so preponderate[ ] in favorof the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of theevidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotationmarks omitted]; see Dunnaville v Metropolitan Tr. Auth. of City of N.Y., 68 AD3d 1047[2009]; Rubino v Scherrer, 68 AD3d 1090, 1091-1092 [2009]).
Finally, plaintiff failed to preserve for our review her contention that the court erred inallowing the police investigator who responded to the accident scene to testify with respect to theposition of the vehicles and the location of the debris in the road. Plaintiff did not object to thattestimony at trial and raised her contention for the first time in her reply to defendant's opposingpapers (see Schissler v Athens Assoc., 19 AD3d 979 [2005]). Present—Scudder,P.J., Peradotto, Lindley and Sconiers, JJ.